BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

[This summary does not form part of the decision.]

An item on Checkpoint discussed the return of a child after she went missing off the coast of New Zealand with her father. Extensive media coverage reported that the pair had sailed to Australia on a catamaran and that the family was involved in a custody dispute, with proceedings pending under the Care of Children Act 2004. The item aired after the child had been located and featured an interview with the child’s mother, who discussed her fears for her daughter’s safety, and their reunion. The Authority did not uphold a complaint that this item breached the child’s privacy and treated her unfairly. The information discussed during the interview was in the public domain at the time of broadcast, and the topic was treated sensitively and respectfully by the interviewer. There was also an element of public interest in the child’s welfare and her being found safe. A number of other broadcasting standards raised by the complainant were not applicable or not breached in the context of the broadcast.

Not Upheld: Privacy, Fairness, Balance, Good Taste and Decency, Programme Information, Children’s Interests, Violence, Law and Order, Discrimination and Denigration, Accuracy

Introduction

[1]  An item on Checkpoint discussed the return of a child after she went missing off the coast of New Zealand with her father. Extensive media coverage reported that the pair had sailed to Australia on a catamaran and that the family was involved in a custody dispute, with proceedings pending under the Care of Children Act 2004. The item aired after the child had been located and featured an interview with the child’s mother, who discussed her fears for her daughter’s safety, and their reunion. At one point during the interview, the presenter said:

This has been a difficult custody issue between you and [the child’s father] and it’s ongoing, it’s before the Family Court and I don’t want to talk about that – we can’t talk about it, anyway.

[2]  James Parlane complained that this item breached the child’s privacy, as the matter was subject to Family Court proceedings and she could therefore not be named. He said that the broadcaster showed no concern or compassion for the child and had no regard for the matter before the Family Court.

[3]  Mr Parlane complained under all broadcasting standards, except for Standard 7 – Alcohol, as set out in the Radio Code of Broadcasting Practice. In our view the privacy and fairness standards are the most applicable to Mr Parlane’s concerns, so we have focused our determination on those standards. We address the remaining standards from paragraph [28] below.

[4]  The item was broadcast at 5.45pm on 25 January 2017 on RNZ National. The members of the Authority have listened to a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Overview of findings and freedom of expression

[5]  The right to freedom of expression, including the broadcaster’s right to impart ideas and information and the public’s right to receive that information, is the starting point in our consideration of complaints. The right we have to express ourselves in the way we choose, and to receive information, is a fundamental freedom, but it is not an absolute freedom. It is nevertheless an important right, and we may only interfere and uphold complaints where the limitation on the right is reasonable and justified in a free and democratic society.¹

[6]  We consider this item was in the public interest as listeners had a legitimate interest in being informed that the missing child had been found and was safe, and hearing this from her mother’s perspective. The interview offered a human interest angle to a factual report on the news of the child’s return, and we note that in a later interview listeners also heard from the child’s father about his experience.

[7]  Our task is to weigh the value of the programme (and the importance of the expression) against the level of actual or potential harm that might be caused by the broadcast. Here, the complainant has submitted that the broadcast caused harm to the child by disclosing her name and private information about her during the interview in breach of the privacy and fairness standards (among others).

[8]  For the reasons set out below, we have concluded that the broadcast did not breach the child’s privacy and that she was not treated unfairly by the broadcaster. The information discussed during the item was already in the public domain at the time of broadcast and had been widely reported. We also consider that the topic was treated sensitively by the presenter. While we acknowledge the presenter came close to discussing confidential information during the broadcast (see further below), we have not identified any harm arising from the broadcast which would outweigh the broadcaster’s right to freedom of expression and the audience’s right to receive the broadcast in this case.

Did the broadcast breach the child’s privacy?

[9]  The privacy standard (Standard 10) states that broadcasters should maintain standards consistent with the privacy of the individual. The standard aims to protect, where reasonable, people’s wishes not to have themselves or their affairs broadcast to the public. It seeks to protect their dignity, autonomy, mental wellbeing and reputation, and their ability to develop relationships, opinions and creativity away from the glare of publicity. But it also allows broadcasters to gather, record and broadcast material where this is in the public interest.

The parties’ submissions

[10]  Mr Parlane submitted that:

• The interviewer was aware that there were proceedings before the Family Court in relation to this case, and he breached both the child’s privacy and the rules of the Family Court by naming her during the broadcast. This was a direct breach of her privacy and resulted in her personal business being broadcast without her consent.

[11]  RNZ submitted that:

• The host was careful to avoid discussing issues around the custody of the child and made specific mention of this during the interview.
• The complainant did not specify particular facts about the child which were disclosed in breach of her privacy.

Our analysis

[12]  We note first that it is not the place of this Authority to make a determination on whether the publication of information about the individuals featured in the broadcast breached Family Court rules. The Authority’s role is to make a finding on whether the child in this case had a reasonable expectation of privacy over the information disclosed during the broadcast, and whether the broadcasting privacy standard has been breached.

[13]  In order to make such a finding, we consider the following three criteria to assess whether there has been any breach of privacy: the individual whose privacy has allegedly been interfered with must be identifiable; the broadcast must disclose private information or material about that individual; and the disclosure must be considered highly offensive to an objective reasonable person.²

[14]  The complainant’s primary concern in relation to the privacy standard is that the child was named numerous times during the broadcast. We accept that this meant she was identifiable, satisfying the first criteria listed above.

[15]  The next question is whether any private information was broadcast about the child, and whether she had a reasonable expectation of privacy over the material broadcast. The broadcaster advised the Authority that the child was named in the broadcast because:

• Her name had been publicised for many days before the interview (and she had appeared in numerous photographs with her mother).
• Authorities sought the media’s assistance in trying to locate her.
• Her identity and parental circumstances had been widely reported by other media by the time the interviewer came to interview both the mother and the father.
• In neither interview, nor in arrangements leading up to those interviews, did either parent raise any objection to their daughter being identified.
• The item did not report on details of the Family Court or other proceedings so no breach of court orders occurred.

[16]  Guideline 10d to the privacy standard states that a person will not usually have a reasonable expectation of privacy in relation to matters in the public domain.³ We are satisfied that the information discussed during this item, including the child’s name, was already in the public domain at the time of this broadcast. The broadcaster has submitted that, in part, this was because authorities used the media to seek public assistance to locate the missing child. The names and photographs of the child, and her father and mother, were widely circulated prior to this broadcast and by other news outlets besides RNZ. Numerous articles related to this story appeared, for example, on Stuff.co.nz, in the New Zealand Herald and on Newshub from late December 2016 to mid-January 2017. Articles containing this information also appeared on a number of international news sites such as news.com.au.

[17]  Further details about the child and her father’s disappearance, the warrant issued for her father’s arrest, and the ongoing custody dispute, were also widely reported in December and early January prior to the broadcast of this item. We therefore find that this item did not provide any information or material not already in the public domain and therefore did not breach the child’s privacy.

[18]  Additionally, we note the broadcaster’s submission that neither parent objected to the child being identified during interviews with RNZ. Guideline 10g to the privacy standard states that a parent or guardian can consent to a broadcast on behalf of a child under the age of 16, so long as the broadcaster is satisfied that the broadcast is not contrary to the best interests of the child. In this case we consider that the interview was sensitive and respectful towards the child and her experiences, and we do not think it was contrary to her best interests (we discuss this point further below in regard to fairness). As we have said there was also a level of public interest in listeners being assured that the child had been found and her mother’s assurance that she was well.

[19]  For these reasons we do not uphold the privacy complaint.

[20]  Notwithstanding this finding, we wish to record our view that this item did come close to disclosing confidential information about the child and particularly the ongoing custody proceedings. It is important that broadcasters take care to keep sensitive information confidential. We do not consider the line was crossed in this case, and note that the presenter specifically acknowledged the proceedings and their confidentiality during the interview.

Was any individual or organisation taking part or referred to in the broadcast treated unfairly?

[21]  The fairness standard (Standard 11) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. One of the purposes of the fairness standard is to protect individuals and organisations from broadcasts which provide an unfairly negative representation of their character or conduct. Programme participants and people referred to in broadcasts have the right to expect that broadcasters will deal with them justly and fairly, so that unwarranted harm is not caused to their reputation and dignity.⁴

The parties’ submissions

[22]  Mr Parlane submitted that the interview showed no respect, compassion or concern for the child and had no regard for the fact that the matter was before the Court.

[23]  RNZ stated it was unable to respond to this aspect of Mr Parlane’s complaint, as he did not provide any particular details about how the broadcast breached the fairness standard.

Our analysis

[24]  We do not consider the child was treated unfairly during this broadcast. The interview focused primarily on her mother’s thoughts and feelings about her daughter’s disappearance and the danger of her sailing journey with her father. The item did not focus on the custody proceedings and, as noted above, the presenter specifically acknowledged that he could not address this topic when he said that he could not talk about the ‘custody issue’ before the Family Court.

[25]  We have found that the interviewer was respectful about the topic and, as identifying information about the child was already in the public domain, she was not unfairly identified.⁵ Her mother was careful to acknowledge where she did not know certain information and was respectful and calm in relation to the father’s actions. At no point in the item did we feel that the child was exploited, humiliated or unfairly identified, and as we have noted above, there was a level of public interest in this item and in the audience being made aware that she was safe.

[26]  We therefore do not uphold this aspect of Mr Parlane’s complaint.

Did the item breach any other broadcasting standards?

[27]  Mr Parlane also complained under all other broadcasting standards, except Standard 7 – Alcohol, of the Radio Code of Broadcasting Practice. Our reasons for finding these standards were either not applicable or not breached are set out below.

Balance

[28]  Under the balance standard (Standard 8), Mr Parlane submitted that the broadcaster failed to note that the child was an Australian citizen and that Police had not made a fair effort to issue the father with proceedings (but simply demanded the court issue a warrant for his arrest). RNZ should have noted these issues for the public, he said.

[29]  We do not consider this item amounted to a discussion of a controversial issue of public importance. The interview with the child’s mother provided a human interest angle to the news that the child had been found safe and well. This was a narrowly focused, personal item which did not require the inclusion of alternative viewpoints. In any event, the omission of the points Mr Parlane would have preferred to be included did not result in the item being unbalanced.

[30]  We therefore do not uphold this aspect of the complaint.

Other broadcasting standards

[31]  Mr Parlane made no further submissions under the remaining standards.

[32]  RNZ submitted that, as Mr Parlane did not give any particular details about which aspects of the item breached broadcasting standards, these aspects of Mr Parlane’s complaint could be taken no further.

[33]  As we have said, this item offered a human interest angle to a factual news report, and was within audience expectations for the programme. We therefore do not consider the item breached the good taste and decency, programme information, children’s interests, violence or law and order standards (Standards 1-5).

[34]  Mr Parlane did not identify a section of the community he considered was denigrated or discriminated against during the item (Standard 6). He also did not identify which aspects of the item he considered were inaccurate under Standard 9.

[35]  We therefore do not uphold the remaining aspects of Mr Parlane’s complaint.

For the above reasons the Authority does not uphold the complaint.

Signed for and on behalf of the Authority

Peter Radich
Chair
16 June 2017

Appendix

The correspondence listed below was received and considered by the Authority when it determined this complaint:

1      James Parlane’s formal complaint – 9 February 2017
2      RNZ’s response to the complaint – 8 March 2017
3      Mr Parlane’s referral to the Authority – 23 March 2017
4      RNZ’s confirmation of no further comment – 28 April 2017
5      RNZ’s response to request for further information – 10 May 2017
6      Mr Parlane’s final comments – 11 May 2017

¹  See sections 5 and 14 of the New Zealand Bill of Rights Act 1990, and Commentary: Freedom of Expression, Broadcasting Standards in New Zealand Codebook, page 6
²  Guidelines 10a and 10b
³  Guideline 10d
⁴  Commerce Commission and TVWorks Ltd, Decision No. 2008-014
⁵  Guideline 11h